in the Interest of M.C. and T.C., Children
Opinion
FILED 15-0544 7/27/2015 1:03:31 PM tex-6233643 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK
No. 15-0544
IN THE
SUPREME COURT
OF TEXAS ________________________________________________________________
IN THE INTEREST OF M.C. AND T.C., CHILDREN
MAURICE C. Petitioner
Texas Department of Family and Protective Services Respondent ________________________________________________________________ On Petition for Review from the Fourth Court of Appeals, San Antonio, Texas Cause Number 04-14-00893-CV ________________________________________________________________
Petition for Review ________________________________________________________________
GERALD URETSKY Attorney at Law 406 Brees Boulevard San Antonio, Texas 78209-4828 Phone: (210) 820-8294 Fax: (210) 822-8735 Email: uretsky@msn.com Bar No. 20414600
/s/Gerald Uretsky ATTORNEY FOR PETITIONER IN THE SUPREME COURT OF TEXAS
In the Interest of M.C. AND T.C., NO. 15-0544 Children
PETITION FOR REVIEW
TO THE HONORABLE SUPREME COURT OF TEXAS:
COMES NOW the Petitioner, MAURICE C., and respectfully moves the
Court to review the Memorandum Opinion and Judgment of the Fourth Court of
Appeals in Appeal No. 04-14-00893-CV, signed on June 10, 2015, and in support
of said Petition would show the Court as follows:
2 Identity of Parties and Counsel
Pursuant to TEX. R. APP. P. ANN. 38.1(a):
Parties:
(1) MAURICE C. is the father of the children the subject of this appeal.
He is the Appellant and was a Respondent in the trial court. He is now the
Petitioner, was the Appellant in the court of appeals, and was a Respondent in the
trial court. He is referred to as “Appellant” herein.
(2) CYNTHIA T. is the mother of the children the subject of this suit.
She was a Respondent in the trial court and, to the undersigned’s knowledge, did
not appeal.
(3) THE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE
SERVICES, 3635 S.E. Military Dr., San Antonio, Texas 78223, is the Appellee
and was the Petitioner in the trial court.
(4) M.C. and T.C. currently reside in Texas Department of Family and
Protective Services placement and are the children the subject of this appeal.
Trial Attorneys:
(1) MAURICE C., father, was represented by MARGARET SCOTT,
P.O. Box 708695, San Antonio, Texas 78278.
3 (2) CYNTHIA T., mother, was represented by MATTHEW FINCH, 115
E Travis #1500, San Antonio, Texas 78205.
(3) The Texas Department of Family and Protective Services was
represented by KRISTEN CALVERT, Assistant District Attorney, 100 Dolorosa
St., 3rd Floor, San Antonio, Texas 78205.
(4) The children were represented by LAURA DURAN, 719 S. St.
Mary’s Street, Texas 78205.
Appellate Attorneys:
(1) MAURICE C., father, is represented by GERALD URETSKY, 406
Brees Boulevard, San Antonio, Texas 78209-4828.
(2) The Texas Department of Family and Protective Services is
represented by the BEXAR COUNTY DISTRICT ATTORNEY’S OFFICE,
Appellate Section, 101 W. Nueva Street, 4th Floor, San Antonio, Texas 78205.
(3) The children are represented by LAURA DURAN, 719 S. St. Mary’s
Street, Texas 78205.
4 Table of Contents
Page
Identity of Parties and Counsel . . . . . . 3
Table of Contents . . . . . . . . 4
Table of Authorities . . . . . . . 5
Statement of the Case . . . . . . . 8
Issues Presented . . . . . . . . 8
Statement of Facts . . . . . . . 10
Argument . . . . . . . . . 16
First Issue - Restated . . . . . . 16
Second Issue - Restated . . . . . . 18
Third Issue - Restated . . . . . . 20
Fourth Issue - Restated . . . . . . 23
Conclusion and Prayer . . . . . . . 30
Certificate of Compliance . . . . . . 32
Index to Appendix . . . . . . . 32
Certificate of Service . . . . . . . 32
5 Table of Authorities
Statutes
TEX. FAM. CODE §161.001 . . . . . . . 8
TEX. FAM. CODE §263.101 . . . . . . . 21
TEX. FAM. CODE §263.307 . . . . . . . 23
TEX. R. APP. P. ANN. 38.1 . . . . . . 3
TEX. R. EVID. 801 . . . . . . . . 17
TEX. R. EVID. 802 . . . . . . . . 17
Cases
In re C.H., 89 S.W.3d 17 (Tex. 2002) . . . . . . 25
In re E.D., 419 S.W.3d 615 (Tex. App. – San Antonio 2013, pet. denied) 25
In re E.Y., No. 13-13-00203-CV, 2013 Tex. App. Lexis 8139 (Tex. . 23 App. – Corpus Christi, July 3, 2013) mem. op.
In re R.R., 209 S.W.3d 112 (Tex. 2006) . . . . . 23
Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) . . . . 25
In re J.J.O., 131 S.W.3d 618 (Tex. App. – Fort Worth 2004, no pet.) . 20
In the Interest of M.R., No. 07-13-00440-CV, 2014 Tex. App. Lexis . 20 6220 mem. op. (Tex. App. – Amarillo, June 9, 2014)
Liu v. Tex. Dep’t of Family & Protective Servs., 273 S.W.3d 785 (Tex. 21 App. – Houston[1st Dist.] 2008, no pet.)
6 Wiley v. Spratlan, 543 S.W.2d 349 (Tex. 1976) . . . . 23
7 Statement of the Case
This is an accelerated appeal of the trial court’s order terminating
Appellant’s parental rights. The suit was filed by Appellee, Texas Department of
Family and Protective Services (“the Department”), as a child abuse-neglect case,
with one subject child. A jury was waived, and the case was tried to the court (RR
1). At the close of evidence and argument, the court terminated Appellant’s
parental rights to his minor child. This appeal followed. The clerk’s record is
designated “CR.” The reporter’s record is designated “RR.”
Issues Presented
First Issue
Whether the evidence is legally or factually insufficient to support the
court’s finding, pursuant to section 161.001(1)(D) of the Texas Family Code, that
Appellant knowingly placed or knowingly allowed the children to remain in
conditions or surroundings which endanger their physical or emotional well-being.
8 Second Issue
Whether the evidence is legally or factually insufficient to support the
court’s finding, pursuant to section 161.001(1)(N) of the Texas Family Code, that
Appellant constructively abandoned the children who have been in the permanent
or temporary managing conservatorship of the Department of Family and
Protective Services or an authorized agency for not less than six months and: (1)
the Department or authorized agency has made reasonable efforts to return the
children to Appellant; (2) Appellant has not regularly visited or maintained
significant contact with the children; and (3) Appellant has demonstrated an
inability to provide the children with a safe environment.
Third Issue
Whether the evidence is legally or factually insufficient to support the
court’s finding, pursuant to section 161.001(1)(O) of the Texas Family Code, that
Appellant failed to comply with the provisions of a court order that specifically
established the actions necessary for Appellant to obtain the return of the children
who have been in the permanent or temporary managing conservatorship of the
Department of Family and Protective Services for not less than nine months as a
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FILED 15-0544 7/27/2015 1:03:31 PM tex-6233643 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK
No. 15-0544
IN THE
SUPREME COURT
OF TEXAS ________________________________________________________________
IN THE INTEREST OF M.C. AND T.C., CHILDREN
MAURICE C. Petitioner
Texas Department of Family and Protective Services Respondent ________________________________________________________________ On Petition for Review from the Fourth Court of Appeals, San Antonio, Texas Cause Number 04-14-00893-CV ________________________________________________________________
Petition for Review ________________________________________________________________
GERALD URETSKY Attorney at Law 406 Brees Boulevard San Antonio, Texas 78209-4828 Phone: (210) 820-8294 Fax: (210) 822-8735 Email: uretsky@msn.com Bar No. 20414600
/s/Gerald Uretsky ATTORNEY FOR PETITIONER IN THE SUPREME COURT OF TEXAS
In the Interest of M.C. AND T.C., NO. 15-0544 Children
PETITION FOR REVIEW
TO THE HONORABLE SUPREME COURT OF TEXAS:
COMES NOW the Petitioner, MAURICE C., and respectfully moves the
Court to review the Memorandum Opinion and Judgment of the Fourth Court of
Appeals in Appeal No. 04-14-00893-CV, signed on June 10, 2015, and in support
of said Petition would show the Court as follows:
2 Identity of Parties and Counsel
Pursuant to TEX. R. APP. P. ANN. 38.1(a):
Parties:
(1) MAURICE C. is the father of the children the subject of this appeal.
He is the Appellant and was a Respondent in the trial court. He is now the
Petitioner, was the Appellant in the court of appeals, and was a Respondent in the
trial court. He is referred to as “Appellant” herein.
(2) CYNTHIA T. is the mother of the children the subject of this suit.
She was a Respondent in the trial court and, to the undersigned’s knowledge, did
not appeal.
(3) THE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE
SERVICES, 3635 S.E. Military Dr., San Antonio, Texas 78223, is the Appellee
and was the Petitioner in the trial court.
(4) M.C. and T.C. currently reside in Texas Department of Family and
Protective Services placement and are the children the subject of this appeal.
Trial Attorneys:
(1) MAURICE C., father, was represented by MARGARET SCOTT,
P.O. Box 708695, San Antonio, Texas 78278.
3 (2) CYNTHIA T., mother, was represented by MATTHEW FINCH, 115
E Travis #1500, San Antonio, Texas 78205.
(3) The Texas Department of Family and Protective Services was
represented by KRISTEN CALVERT, Assistant District Attorney, 100 Dolorosa
St., 3rd Floor, San Antonio, Texas 78205.
(4) The children were represented by LAURA DURAN, 719 S. St.
Mary’s Street, Texas 78205.
Appellate Attorneys:
(1) MAURICE C., father, is represented by GERALD URETSKY, 406
Brees Boulevard, San Antonio, Texas 78209-4828.
(2) The Texas Department of Family and Protective Services is
represented by the BEXAR COUNTY DISTRICT ATTORNEY’S OFFICE,
Appellate Section, 101 W. Nueva Street, 4th Floor, San Antonio, Texas 78205.
(3) The children are represented by LAURA DURAN, 719 S. St. Mary’s
Street, Texas 78205.
4 Table of Contents
Page
Identity of Parties and Counsel . . . . . . 3
Table of Contents . . . . . . . . 4
Table of Authorities . . . . . . . 5
Statement of the Case . . . . . . . 8
Issues Presented . . . . . . . . 8
Statement of Facts . . . . . . . 10
Argument . . . . . . . . . 16
First Issue - Restated . . . . . . 16
Second Issue - Restated . . . . . . 18
Third Issue - Restated . . . . . . 20
Fourth Issue - Restated . . . . . . 23
Conclusion and Prayer . . . . . . . 30
Certificate of Compliance . . . . . . 32
Index to Appendix . . . . . . . 32
Certificate of Service . . . . . . . 32
5 Table of Authorities
Statutes
TEX. FAM. CODE §161.001 . . . . . . . 8
TEX. FAM. CODE §263.101 . . . . . . . 21
TEX. FAM. CODE §263.307 . . . . . . . 23
TEX. R. APP. P. ANN. 38.1 . . . . . . 3
TEX. R. EVID. 801 . . . . . . . . 17
TEX. R. EVID. 802 . . . . . . . . 17
Cases
In re C.H., 89 S.W.3d 17 (Tex. 2002) . . . . . . 25
In re E.D., 419 S.W.3d 615 (Tex. App. – San Antonio 2013, pet. denied) 25
In re E.Y., No. 13-13-00203-CV, 2013 Tex. App. Lexis 8139 (Tex. . 23 App. – Corpus Christi, July 3, 2013) mem. op.
In re R.R., 209 S.W.3d 112 (Tex. 2006) . . . . . 23
Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) . . . . 25
In re J.J.O., 131 S.W.3d 618 (Tex. App. – Fort Worth 2004, no pet.) . 20
In the Interest of M.R., No. 07-13-00440-CV, 2014 Tex. App. Lexis . 20 6220 mem. op. (Tex. App. – Amarillo, June 9, 2014)
Liu v. Tex. Dep’t of Family & Protective Servs., 273 S.W.3d 785 (Tex. 21 App. – Houston[1st Dist.] 2008, no pet.)
6 Wiley v. Spratlan, 543 S.W.2d 349 (Tex. 1976) . . . . 23
7 Statement of the Case
This is an accelerated appeal of the trial court’s order terminating
Appellant’s parental rights. The suit was filed by Appellee, Texas Department of
Family and Protective Services (“the Department”), as a child abuse-neglect case,
with one subject child. A jury was waived, and the case was tried to the court (RR
1). At the close of evidence and argument, the court terminated Appellant’s
parental rights to his minor child. This appeal followed. The clerk’s record is
designated “CR.” The reporter’s record is designated “RR.”
Issues Presented
First Issue
Whether the evidence is legally or factually insufficient to support the
court’s finding, pursuant to section 161.001(1)(D) of the Texas Family Code, that
Appellant knowingly placed or knowingly allowed the children to remain in
conditions or surroundings which endanger their physical or emotional well-being.
8 Second Issue
Whether the evidence is legally or factually insufficient to support the
court’s finding, pursuant to section 161.001(1)(N) of the Texas Family Code, that
Appellant constructively abandoned the children who have been in the permanent
or temporary managing conservatorship of the Department of Family and
Protective Services or an authorized agency for not less than six months and: (1)
the Department or authorized agency has made reasonable efforts to return the
children to Appellant; (2) Appellant has not regularly visited or maintained
significant contact with the children; and (3) Appellant has demonstrated an
inability to provide the children with a safe environment.
Third Issue
Whether the evidence is legally or factually insufficient to support the
court’s finding, pursuant to section 161.001(1)(O) of the Texas Family Code, that
Appellant failed to comply with the provisions of a court order that specifically
established the actions necessary for Appellant to obtain the return of the children
who have been in the permanent or temporary managing conservatorship of the
Department of Family and Protective Services for not less than nine months as a
result of the children's removal from Appellant under Chapter 262 for the abuse or
neglect of the children.
9 Fourth Issue
Whether the evidence is legally or factually insufficient to support the trial
court’s finding that the termination of Appellant’s parental rights, pursuant to
section 161.001(2) of the Texas Family Code, is in children’s best interest.
Statement of Facts
I. Procedural Background
This is an accelerated appeal from the trial court’s order terminating
Appellant’s parental rights to his children (CR 143-149).
The Department began this litigation on January 22, 2014, when it filed its
Original Petition for Protection of a Child, for Conservatorship, and for
Termination in Suit Affecting the Parent-Child Relationship. The cause number
was 2014-PA-00142, and the case was docketed into the 288th Judicial District
Court of Bexar County, Texas (CR 1-13). The petition alleged Appellant to be the
father of the child (CR 2). The petition sought termination of Appellant’s parental
rights and those of the mother (CR 1-13).
An emergency order, taking the children into custody does not appear in the
Clerk’s Record, but temporary orders following an adversary hearing were made,
which placed the children in the temporary managing conservatorship of the
10 Department and granted their parents temporary possessory conservatorship (CR
23-35).
Family Service Plans were created for the parents (CR 75-92). The required
status hearing (CR 94-99) and permanency hearings were conducted (CR 114-120;
136-141).
A trial before the court was held before Hon. Charles Montemayor on
December 11, 2014; that same day a final order terminating the father’s parental
rights was signed (CR 143-149).
Appellant’s trial counsel timely filed a Notice of Appeal on December 19,
2014 (CR 150-151).
II. Factual Background
At trial, the parties called only one witness, whose testimony is summarized
below. Her name appears in italic, underlined font at the left margin for ease of
reference. Bracketed language has been added by Appellant’s counsel. Appellant
did not appear, and his trial counsel had not had contact with him since he had
moved to Houston, causing her to have some concerns about him being able to
have family services in Houston [there was no testimony that services were set up
there], so she announced Not Ready and asked for a continuance (RR 4), as did the
mother’s counsel (RR 5). The children’s ad litem responded that the case was at
11 the ten-month mark, the children are doing really well in their placement with their
maternal grandmother (RR 5). The court denied Appellant’s Not Ready
announcement because: the children are ages seven and four; Appellant had
personal notice or actual notice of the trial setting; and, the law requires that these
cases have to be resolved within a year (RR 5-6).
Jennifer Iruegas, the Department’s current caseworker
She took over this case after it was transferred from another caseworker
(RR 7) [but did not say when]. M.C. is now eight years old, and T.C. is five (RR
7). They have resided with their maternal grandparents for the entire case,
approximately ten months, and are doing very well; their attachment to their
grandmother has continued to grow (RR 8) [but the same was not mentioned
regarding their grandfather]. This placement will lead to permanency, and the
grandparents will able to continue to meet the needs of these children in the future
(RR 8-9) [but said needs were not identified]. Ms. Iruegas has no concerns with
the grandmother being protective in this case (RR 14) [but the same was not
mentioned regarding their grandfather].
The children were removed from Appellant’s care after the Department
received a referral in November 2013 alleging neglectful supervision of the
children; the parents were allegedly using drugs, and at one point, the mother
12 became intoxicated with alcohol and Xanax and proceeded to attempt to slit her
own throat with a knife in front of her children, telling them good-bye and she's
tired of being in the world (RR 9). Appellant’s trial counsel objected to this
hearsay, but the court overruled her objection, because the caseworker was charged
with familiarizing herself with the knowledge of the contents of the file and the
circumstances that led to the Department’s intervention (RR 9). This incident
occurred while the parents resided together, but Appellant was not present at the
time of the incident, which was a violation of the safety plan, because he was not
supposed to leave the mother unsupervised with the children (RR 9-10). Appellant
was aware of the mother's mental health issues (RR 10). The children are in
“trauma informed” therapy because of this incident (RR 10).
Family Service Plans were created for the parents, but neither completed
theirs (RR 10). The parents visited their children two times a month for an hour
(RR 10-11) as ordered by the court (RR 14-15). In September 2014, the parents
stopped visiting their children (RR 11). So, in total, they had about 15 out of the
20 visits ordered in this case (RR 11).
Appellant moved to Houston in October 2014 (RR 14). That same month,
Ms. Iruegas reminded him of the court dates, and he informed her that he would be
present (RR 14). She also asked him if he had intentions of continuing his family
13 service plan services, at which time he told her he did not (RR 14); he was angry
and had lost hope and claimed that it didn't matter if he did his services or not (RR
16-17).
The parents have done nothing to demonstrate that they can provide their
children with a safe and stable home (RR 12) [but see services/tasks completed].
The department made reasonable efforts to work with the parents (RR 12)
[conclusory].
It is in the children’s best interest for the parental rights of the parents to be
terminated (RR 12) [conclusory].
The parents were given the opportunity to visit with the children, supervised
by the grandparents, at the grandparents' home, and did so pretty regularly initially;
then Appellant stopped visiting his children when he moved to Houston (RR 15).
Ms. Iruegas felt that Appellant has abandoned his duty as a father with his children
because he hasn’t seen them in the last few months (RR 17).
In regard to completing the tasks on his Family Service Plan, Appellant was
required to complete a parenting class, a drug assessment with drug treatment, a
psychological evaluation, maintain housing and maintain employment (RR 18).
Regarding the employment task, Appellant was employed on and off during this
case, but Ms. Iruegas did not know if he's currently employed in Houston (RR 17-
14 19). Appellant had housing, did his drug assessment, did the psychological
evaluation and completed parenting classes (RR 19-20). However, he was
unsuccessfully discharged from individual counseling for noncompliance (missing
several sessions), and he did not maintain employment, but Ms. Iruegas was
unaware of whether Appellant is currently employed, and even during his periods
of unemployment, Appellant continued to look for more work (RR 20). His
therapist was concerned about his lack of planning and his lack of ability to care
for and ensure the safety of his children and not leave them alone with their mother
(RR 21). Nevertheless, there was no reason that the maternal grandparents, with
whom the children are placed, should not be given conservatorship and Appellant
be given possessory conservatorship of his children [admission] (RR 22).
Prior to the Department filing its petition to start this case, the Department
was working with the parents in a family-based setting in which it was it
highlighted to Appellant that he shouldn't leave their children alone with their
mother because of her mental health problems, and he violated that requirement
(RR 27-28). Appellant has done nothing to demonstrate that he will never make a
decision like that again (RR 28). The department holds Appellant responsible for
bailing out on his children and leaving to another city instead of staying here to
finish services (RR 28).
15 Argument
First Issue - Restated
Whether the evidence is legally or factually insufficient to support the
court’s finding, pursuant to section 161.001(1)(D) of the Texas Family Code,
that Appellant knowingly placed or knowingly allowed the children to remain
in conditions or surroundings which endanger their physical or emotional
well-being.
The sole witness testified that the children were removed from Appellant’s
care after the Department received a referral in November 2013 alleging neglectful
supervision of the children; the parents were allegedly using drugs, and at one
point, the mother became intoxicated with alcohol and Xanax and proceeded to
attempt to slit her own throat with a knife in front of her children, telling them
good-bye and she's tired of being in the world (RR 9). Appellant’s trial counsel
objected to this testimony as hearsay, but the court overruled her objection because
the caseworker was charged with familiarizing herself with the knowledge of the
contents of the file and the circumstances that led to the Department’s intervention
(RR 9).
"Hearsay" is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
16 asserted. TEX. R. EVID. 801(d). Hearsay is not admissible except as provided by
statute or the Texas Rules of Evidence or by other rules prescribed pursuant to
statutory authority. TEX. R. EVID. 802. Ms. Iruegas, the sole witness, did not
testify that she observed this alleged incident, nor did she testify as to when she
became involved in this case; as noted above, she simply said “the Department
received a referral,” (RR 9). This clarifies that the court was aware that the witness
was repeating a statement made by someone else, made out of court. The identity
of the witness to this alleged statement/incident is not disclosed in the reporter’s
record. In addition, the statement was made to prove the truth of the matter
asserted, which formed the sole basis of the court’s finding that Appellant
knowingly placed or knowingly allowed the children to remain in conditions or
surroundings (i.e., the mother’s alleged suicide threat in front of her children)
which endangered their physical or emotional well-being.
Ms. Iruegas testified that the incident occurred while the parents resided
together, but Appellant was not present at the time of the incident, which was a
violation of the safety plan, because he was not supposed to leave the mother
unsupervised with the children (RR 9-10); and, Appellant was aware of the
mother's mental health issues (RR 10).
17 The court’s reason for overruling the hearsay objection was invalid. There is
no exception to the hearsay rule that provides that a statement is not hearsay, and is
thus admissible, if the agency employee testifying has a duty to familiarize herself
with the agency’s file and the circumstances that led to the Department’s
intervention. Therefore, the court erred in overruling the hearsay objection. This
error was harmful because this was the only evidence regarding this ground of
termination of Appellant’s parental rights.
Finally, assuming for the sake of argument that the statement is not hearsay,
it seems that it would have been more accurate for the court to make a finding
under section 161.001(1)(E) of the Texas Family Code (endangering conduct),
than under section 161.001(1)(D) (endangering conditions), because it would have
been the mother’s conduct, not the conditions in which the children were found,
that would have formed the factual basis for the Department’s removal of them
from the parents.
Second Issue - Restated
Whether the evidence is legally or factually insufficient to support the
court’s finding, pursuant to section 161.001(1)(N) of the Texas Family Code, that
Appellant constructively abandoned the children who have been in the permanent
or temporary managing conservatorship of the Department of Family and
18 Protective Services or an authorized agency for not less than six months and: (1)
the Department or authorized agency has made reasonable efforts to return the
children to Appellant; (2) Appellant has not regularly visited or maintained
significant contact with the children; and (3) Appellant has demonstrated an
The second element of proof, above (2), required to establish the
“constructive abandonment” ground for terminating parental rights is that the
parent has not regularly visited or maintained significant contact with the children.
The Department failed to prove that Appellant had done so. To the contrary, Ms.
Iruegas testified that: [1] the parents visited their children two times a month for an
hour (RR 10-11) as ordered by the court (RR 14-15); [2] the parents visited the
children, supervised by the grandparents, at the grandparents' home, and did so
pretty regularly initially; [3] in September 2014, the parents stopped visiting their
children (RR 11); [4] so, in total, they had about 15 out of the 20 visits ordered in
this case (RR 11). This means that Appellant participated in seventy-five percent
of the visits with his children that the court allowed. Appellant submits that this is
regular visitation and significant contact with his children by the Department’s
own admission. Such testimony is insufficient to establish that Appellant did not
regularly visit his children or maintain significant contact with them. Cf. In re
19 J.J.O., 131 S.W.3d 618, 629 (Tex. App.—Fort Worth 2004, no pet.) (mother
participated in only twelve visits with child during a nine-month period); In the
Interest of M.R., No. 07-13-00440-CV, 2014 Tex. App. Lexis 6220 mem. op. (Tex.
App.––Amarillo, June 9, 2014) (mother saw children five times in 33 months); In
re E.Y., No. 13-13-00203-CV, 2013 Tex. App. Lexis 8139 (Tex. App.––Corpus
Christi, July 3, 2013) mem. op. (father did not visit or maintain contact with the
child for over eleven months).
Third Issue - Restated
Whether the evidence is legally or factually insufficient to support the
court’s finding, pursuant to section 161.001(1)(O) of the Texas Family Code, that
Appellant failed to comply with the provisions of a court order that specifically
established the actions necessary for Appellant to obtain the return of the children
who have been in the permanent or temporary managing conservatorship of the
Department of Family and Protective Services for not less than nine months as a
result of the children's removal from Appellant under Chapter 262 for the abuse or
In child abuse and neglect cases, the Department prepares a Family Service
Plan enumerating the services that a parent must complete toward meeting the
Department’s goals for the parent prior to reunification of the children with the
20 parent. TEX. FAM. CODE §263.101. A Family Service Plan is designed to
reunify a parent with a child who has been removed from the parent by the
Department. Liu v. Tex. Dep’t of Family & Protective Servs., 273 S.W.3d 785, 795
(Tex. App.–Houston[1st Dist.] 2008, no pet.). The Family Service Plan is usually
incorporated into the Status Hearing Order and Pretrial Scheduling Order, TEX.
FAM. CODE §263.106, to become the order referenced in section 161.001(1)(O)
of the Texas Family Code, for which, noncompliance therewith may become a
ground for termination of parental rights; said incorporation was done in this case
(CR 96-97).
Ms. Iruegas testified that Family Service Plans were created for the parents,
but neither completed theirs (RR 10). But she did not testify that she made all the
referrals and authorizations necessary for Appellant to participate in said services;
nor did she give any examples or instances of the her efforts to reunify Appellant’s
children with him. She stated Appellant moved to Houston in October 2014 (RR
14) and that same month, she also asked him if he had intentions of continuing his
family service plan services, at which time he told her he did not (RR 14); he was
angry and had lost hope and claimed that it didn't matter if he did his family
services or not (RR 16-17). But, there was no testimony that family services were
even made available to Appellant in Houston. Nor was there any testimony that a
21 caseworker in the Houston area had been assigned to work with Appellant. Ms.
Iruegas only offered the conclusory testimony that the Department made
reasonable efforts to work with the parents (RR 12).
Ms. Iruegas testified that the parents had done nothing to demonstrate that
they can provide their children with a safe and stable home (RR 12). However,
this testimony ignores her other testimony regarding the family services/tasks that
Appellant completed, described below, which can be viewed as efforts to provide
their children with a safe and stable home.
Regarding the employment task, Ms. Iruegas stated Appellant was employed
on and off during this case, but Ms. Iruegas did not know if he's currently
employed in Houston (RR 17-19), and even during his periods of unemployment,
Appellant continued to look for more work (RR 20). She acknowledged that
Appellant had housing, did his drug assessment, did the psychological evaluation
and completed parenting classes (RR 19-20). She stated, however, that he was
unsuccessfully discharged from individual counseling for noncompliance (missing
several sessions) (RR 20). She said Appellant’s therapist was concerned about his
lack of planning and his lack of ability to care for and ensure the safety of his
children and not leave them alone with their mother (RR 21).
22 Fourth Issue - Restated
Whether the evidence is legally or factually insufficient to support the trial
court’s finding that the termination of Appellant’s parental rights, pursuant to
section 161.001(2) of the Texas Family Code, is in the children’s best interest.
This issue concerns the second prong of the termination test: the child’s best
interest, pursuant to Section 161.001(2) of the Family Code. Proof of the first
prong of the termination test, under Section 161.001(1) (“grounds”), without more,
will not support a termination; unless there is a finding of best interest, there can be
no termination. Wiley v. Spratlan, 543 S.W.2d at 351.
There is a strong presumption that keeping a child with a parent is in the
child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, when
the court considers factors related to the best interest of the child, “the prompt and
permanent placement of the child in a safe environment is presumed to be in the
child’s best interest.” TEX. FAM. CODE §263.307(a). In determining whether a
child’s parent is willing and able to provide the child with a safe environment, the
court should consider: (1) the child’s age and physical and mental vulnerabilities;
(2) the frequency and nature of out-of-home placements; (3) the magnitude,
frequency, and circumstances of the harm to the child; (4) whether the child has
been the victim of repeated harm after the initial report and intervention by the
23 Department or other agency; (5) whether the child is fearful of living in or
returning to the child’s home; (6) the results of psychiatric, psychological, or
developmental evaluations of the child, the child’s parents, other family members,
or others who have access to the child’s home; (7) whether there is a history of
abusive or assaultive conduct by the child’s family or others who have access to
the child’s home; (8) whether there is a history of substance abuse by the child’s
family or others who have access to the child’s home; (9) whether the perpetrator
of the harm to the child is identified; (10) the willingness and ability of the child’s
family to seek out, accept, and complete counseling services and to cooperate with
and facilitate an appropriate agency’s close supervision; (11) the willingness and
ability of the child’s family to effect positive environmental and personal changes
within a reasonable period of time; (12) whether the child’s family demonstrates
adequate parenting skills; and (13) whether an adequate social support system
consisting of an extended family and friends is available to the child. Id.
§263.307(b).
In addition, “[a]n extended number of factors have been considered by the
courts in ascertaining the best interest of the child. Included among these are the
following: (A) the desires of the child; (B) the emotional and physical needs of the
child now and in the future; (C) the emotional and physical danger to the child now
24 and in the future; (D) the parental abilities of the individuals seeking custody; (E)
the programs available to assist these individuals to promote the best interest of the
child; (F) the plans for the child by these individuals or by the agency seeking
custody; (G) the stability of the home or the proposed placement; (H) the acts or
omissions of the parents which may indicate that the existing parent-child
relationship is not a proper one; and (I) any excuse for the acts or omissions of the
parent [citations omitted]. This list is by no means exhaustive, but does indicate a
number of considerations which either have been or would appear to be pertinent.”
Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
Also, evidence that proves one or more statutory grounds for termination
may constitute evidence illustrating that termination is in the child’s best interest.
In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (holding same evidence may be
probative of both section 161.001(1) grounds and best interest, but such evidence
does not relieve the State of its burden to prove best interest). A best-interest
analysis may consider circumstantial evidence, subjective factors, and the totality
of the evidence as well as the direct evidence. In re E.D., 419 S.W.3d 615, 620
(Tex. App.—San Antonio 2013, pet. denied). A trier of fact may measure a
parent’s future conduct by her past conduct and determine whether termination of
parental rights is in the child’s best interest. Id.
25 Reviewing the evidence in light of the foregoing factors reveals its
insufficiency. Ms. Iruegas offered only the conclusory statement that it was in the
children’s best interest for the parental rights of the parents to be terminated (RR
12). However, she also acknowledged that there was no reason that the maternal
grandparents, with whom the children are placed, should not be given managing
conservatorship and Appellant be given possessory conservatorship of his children
(RR 22). This seems contrary to the Department’s position that it is in the
children’s best interest that Appellant’s parental rights be terminated.
Section 263.307(b) Factors
Other than the ages of the two children, the only evidence that was adduced
regarding any physical or mental vulnerabilities of either of the children was their
participation in “trauma informed” therapy because of their mother’s alleged
suicide attempt in front them (RR 10). This was also the only evidence of the
magnitude, frequency, and circumstances of the harm, if any, to the two children.
And, as argued above, this hearsay testimony was wrongfully and harmfully
admitted over trial counsel’s objection. The reporter’s record contains no evidence
of the frequency and nature of out-of-home placements, if any, which may have
occurred before they were removed from their parents’ possession in November
2013. There is no evidence in the reporter’s record that either of the children have
26 been the victim of repeated harm after the initial report and intervention by the
Department, or whether either of them have expressed any fear of living in or
returning to their home. Ms. Iruegas stated that Appellant was unsuccessfully
discharged from individual counseling for noncompliance (missing several
sessions)(RR 20); however, there is no other evidence regarding whether the
children, the maternal grandparents, other family members, or others who have
access to the children’s home have undergone psychiatric, psychological, or
developmental evaluations. There is no evidence of a history of abusive or
assaultive conduct by the children’s family or others who have access to the
children’s home. There is no evidence of any willingness and ability of the
children’s family to seek out, accept, and complete counseling services, to
cooperate with and facilitate the Department’s close supervision, the willingness
and ability of the children’s family to effect positive environmental and personal
changes within a reasonable period of time, whether the grandparents demonstrate
adequate parenting skills, and whether an adequate social support system
consisting of an extended family and friends is available to the children. Ms.
Iruegas testified only that the children have resided with their maternal
grandparents for the entire case, approximately ten months, and are doing very
well; their attachment to their grandmother has continued to grow (RR 8) [but the
27 same was not mentioned regarding their grandfather]. She believed this placement
will lead to permanency, and the grandparents will able to continue to meet the
needs of these children in the future (RR 8-9) [but said needs were not identified].
Ms. Iruegas has no concerns with the grandmother being protective in this case
(RR 14) [but the same was not mentioned regarding their grandfather].
Holley Factors
(A) the desires of the child
There was no evidence of the desire of either child.
(B) the emotional and physical needs of the child now and in the future
There was no evidence of this factor other than Ms. Iruegas testimony that
[1] the children were participating in “trauma informed” therapy because of their
mother’s alleged suicide attempt in front them (RR 10) and [2] the maternal
grandparents will able to continue to meet the needs of these children in the future
(RR 8-9) [but said needs were not identified].
(C) the emotional and physical danger to the child now and in the future
The caseworker testified that the children have resided with their maternal
grandparents for the entire case, approximately ten months, and are doing very
well; their attachment to their grandmother has continued to grow (RR 8), but the
same was not mentioned regarding their grandfather.
28 (D) the parental abilities of the individuals seeking custody
There was no testimony regarding this factor other than has already been
argued above.
(E) the programs available to assist these individuals to promote the best interest
of the child
There was no testimony regarding this factor.
(F) the plans for the child by these individuals or by the agency seeking custody;
There was almost no testimony regarding this factor. The caseworker
testified that the current placement of the children with their maternal grandparents
will lead to permanency (RR 8-9), and the grandparents will able to continue to
meet the needs of these children in the future (RR 8-9), but said needs were not
identified.
(G) the stability of the home or the proposed placement
There was almost no testimony regarding this factor. The caseworker
testified that she has no concerns with the grandmother being protective in this
case (RR 14), but the same was not mentioned regarding their grandfather.
(H) the acts or omissions of the parents which may indicate that the existing parent-child relationship is not a proper one
Ms. Iruegas testified that prior to the Department filing its petition to start
this case, the Department was working with the parents in a family-based setting in
29 which it was it highlighted to Appellant that he shouldn't leave their children alone
with their mother because of her mental health problems, and he violated that
requirement (RR 27-28) when Appellant was not present at the time of the
mother’s alleged suicide threat, which was a violation of the safety plan, because
he was not supposed to leave the mother unsupervised with the children (RR 9-10).
She said Appellant was aware of the mother's mental health issues (RR 10).
(I) any excuse for the acts or omissions of the parent
Conclusion and Prayer
In light of the lack of the evidence concerning the grounds for termination
and that it is in the children’s best interest that Appellant’s parental rights be
terminated, Appellant submits that a factfinder could not “reasonably have formed
a firm belief or conviction” that Appellant’s parental rights should be terminated.
Therefore, this case should be reversed and/or rendered in Appellant’s favor or
remanded for a new trial.
There was no testimony regarding how long the sole witness had been a
caseworker or how long she had been working on this case. Therefore, the weight
to be given her testimony is difficult to determine. She did testify that in October
2014, she reminded Appellant of his court dates, and he informed her that he
30 would be present (RR 14). The record is silent as to reason for Appellant’s
absence. Given that this case was only at the ten-month mark (RR 5), a short
continuance to obtain Appellant’s presence at trial does not seem unreasonable.
WHEREFORE, PREMISES CONSIDERED, Appellant prays this Court
allow briefing and consider reversing the Court of Appeals judgment affirming the
trial court’s termination of his parental rights and enter a judgment [1] denying the
Department’s petition, [2] denying the Department’s petition and appointing
Appellant as possessory conservator of his children, or [3] denying the
Department’s petition and remanding the case for a new trial.
Respectfully submitted,
/s/ Gerald Uretsky GERALD URETSKY 406 Brees Boulevard San Antonio, Texas 78209-4828 Phone: (210) 820-8294 Fax: (210) 822-8735 Email: uretsky@msn.com Bar No. 20414600 ATTORNEY FOR APPELLANT (On Appeal Only)
31 Certificate of Compliance
I HEREBY CERTIFY, pursuant to Texas Rules of Appellate Procedure 9.4, (i) and (j), that, according to the Microsoft Word software used to compose this document, the number of words in designated portion of this document is 4,496.
/s/ Gerald Uretsky GERALD URETSKY ATTORNEY FOR APPELLANT
Index to Appendix Order of Termination . . . . . . . TAB 1
Memorandum Opinion . . . . . . . TAB 2
Judgment . . . . . . . . . TAB 3
Order Appointing Attorney Ad Litem for Father . . . TAB 4 Order to Withdraw and Substitute Attorney Ad Litem Order of Indigence
Certificate of Service
I HEREBY CERTIFY that a true and correct copy of the above and foregoing Petition for Review has been sent, via e-service to the BEXAR COUNTY DISTRICT ATTORNEY, lscott@bexar.org, Appellate Section, 300 Dolorosa St., 4th Floor, San Antonio, Texas 78205 on July 24, 2015.
32 TAB 1 DOCUMENT SCANNED AS FILED
Eu :rtjl lii 2014Pfl00142 .-D288 _____ -/
NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA
C913.06 CAUSE NO. 2014.PA-00142 El
IN THE INTEREST OF § IN THE DISTRICT COURT OF § M C , ET AL § BEXAR COUNTY, TEXAS § CHILDREN § 288TH JUDICIAL DISTRICT
ORDER OF TERMINATION
On the Court heard this case.
Appearances
1.1. The Department of Family and Protective Services ("the Department") appeared through .Th'e/z(r .Thitç.s , caseworker, and by attorney, KRISTEN CALVERT and announced ready.
1.2. Respondent Mother CYNTHIA THOMASON app person and by attorney of record MATTHEW FINCH and announcea re adyin ) (5%lt,f14Ag( '2 t 1.3. Respondent Presumed Father MAURICE COLLINS appeared in person and by attorney of record MARGARET A. SCOTT and announced ready.
1.4. LAURA C. OLIVEIRA DURAN, appointed by the Court as Attorney and Guardian Ad Litem for the children the subject of this suit, appeared and a announced ready. 2: Jurisdiction and Service of Process I 2.1. The Court, having examined the record and heard the evidence and argument of counsel, finds the following: ci a 2.1.1. a request for identification of a court of continuing, exclusive jurisdiction 4 has been made as required by Section 155.101, Texas Family Code.
2.1.2. this Court has jurisdiction of this case and of all the parties and that no other court has continuing, exclusive jurisdiction of this case.
2.2. The Court, having examined the record and heard the evidence and argument of counsel, finds that the State of Texas has jurisdiction to render final orders regarding the children the subject of this suit pursuant to Subchapter C, Chapter 152, Texas Family Code, by virtue of the fact that Texas is the home state of the (3 children.
4 Orderotlermination 2014-PA00142/288TH B Page 143 1 ASAP2O13
/ DOCUMENT SCANNED AS FILED
2.3. The Court finds that all persons entitled to citation were properly cited.
Jury
A jury was waived, and all questions of fact and of law were submitted to the Court.
Record
The record of testimony was duly reported by DAVID ZARATE the court reporter for the Associates Judges Court, Room 3.06 of Bexar County.
The Children
The Court finds that the following children are the subject of this suit:
5.1. Name: M C Sex: Birth Date:
5.2. Name: T C Sex: Birth Date:
Termination of Responde nt Mother CYNTHIA THOMASON'S Parental Rights
6.1. The Court finds by clear and convincing evidence that termination of the parent- child relationship between CYNTHIA THOM.ASON and the children the subject of this suit is in the childmn's best interest.
6.2. Further, the Court finds by clear and convincing evidence that CYNTHIA THOMASON has:
6.2.1. knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children, pursuant to § 161.001(1)(D), Texas Family Code;
conduct or knowingl thephysi cal ore well-being of the children, pursuan -exas Family Code;
6.2.3. failed to comply with the provisions of a court order that specifically 0 established the actions necessary for the mother to obtain the return of the 3 children who have been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the children's removal from the p parent under Chapter 262 for the abuse or neglect of the children, pursuant C to § 161.001(1)(0), Texas Family Code;
7 Order of Termination 2014•PA001421 288TH Page 2 144 ASAP 2013 DOCUMENT SCANNED AS FILED
6. 2-4'-.—Zbe Court finds that CNTH1A THOMASON has £Thenta1.or emotional • . ill nes unable to?HeJor the physical, em6nonaL and mental ne f the children pursuant 6.z.y &nJst1 § 16 1.003, Texas Family Code. hi '"4 i '2trThecourt finds by clear 940A pttAht Oro an nvincing evidence th ~Thc4llness (Pf0#4 j WP$ ..'/ or deficy1n-at.reasonab will continue to riaeiç. ttk4 the mother unable toidethe children suntil the 1gth Ck4dVc 04çgbirthday of the children.
6.f4'2he_Court finds that the Department has bee'iflhe...emporary or permaiiinanagiijg conservaiThf-the children for thuinionths ft preceding the date oflhietermination ha?ihg..pjirsuantto §16l.ö3, $44C tttV A ws6At(" i Texas Family Code. I
6.2.5. The Court finds that the Department has made reasonable efforts to return the children to the mother.
6.3. IT IS THEREFORE ORDERED that the parent-child relationship between CYNTHIA THOMASON and the children the subject of this suit is terminated.
7. Termination of Respondent Father MAURICE COLLINS'S Parental Rights
7.1. The Court finds by clear and convincing evidence that termination of the parent- child relationship between MAURICE COLLINS and the child M C AND T C is in the child's best interest.
7.2. Further, the Court finds by clear and convincing evidence that MAURICE COLLINS has:
'3 7.2.1. knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children, pursuant to § 161.001(1)(D), Texas Family t z Code;
of the children, pursuant to § 161.001 rPexas Family Code; V 7.2.2.1.failed to comply with the provisions of a court order Jhat L specifically established the actions necessary for the MWM to o obtain the return of the children who have been in the permanent or 3 temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of C the children's removal from the parent under Chapter 262 for the p abuse or neglect of the children, pursuant to § 161.001(l)(0), 6 Texas Family Code; I S Orderotlemilnatioc, 2014PA00142/2681H 8 Page 3 145 ASAP 2013 OCJ4T Q EQ2\. RILED tdt-.J ,:-i as 7.
7.2.3. The Court finds that the Department has made reasonable efforts to return the children to the father.
7.3. IT IS THEREFORE ORDERED that the parent-child relationship between MAURICE COLLINS and the child M C AND T C is terminated.
Interstate Compact
The Court finds that Petitioner has filed a verified allegation or statement regarding compliance with the Interstate Compact on the Placement of Children as required by § 162.002(b)(1) of the Texas Family Code.
Managing Conservatorship: M C
9.1. The Court finds that the appointment of the Respondents as permanent managing conservator of the children is not in the children's best interest because the appointment would significantly impair children's physical health or emotional development.
9.2. IT IS ORDERED that the DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES is appointed Permanent Managing Conservator of M C a child the subject of this suit, with the rights and duties specified in § 153.371, Texas Family Code; the Court finding this appointment to be in the best interest of the child.
9.2.1. In addition to these rights and duties, IT IS ORDERED that the Department is authorized to consent to the medical care for M C under § 266.004, Texas Family Code..
Managing Conservatorship: T C
10.1. The Court finds that the appointment of the Respondents as permanent managing conservator of the children is not in the children's best interest because the appointment would significantly impair children's physical health or emotional 2: development.
'4 10.2. IT IS ORDERED that the DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES is appointed Permanent Managing Conservator of T C , a child the subject of this suit, with the rights and duties 13! specified in § 153.371, Texas Family Code; the Court finding this appointment to be in the best interest of the child.
10.2.1. In addition to these rights and duties, IT IS ORDERED that the Department is authorized to consent to the medical care for TY C under § 266.004, Texas Family Code. p 13 .1 B 4 Order of Terminalion 2014-PA-00142 / 288TH 9 146 4 Page ASAP 2013 DOCUMENT SCANNED AS FILED
11. Required Information Regarding the Parties and Children
11.1. The children's information is provided above; the information required of each party not exempted from such disclosure is:
11.1.1. Name: CYNTHIA THOMASON Driver's License: XXX-XX-5928
11.1.2. Name: MAURICECOLLINS Driver's License: XXX-XX-401 1
11.2. IT IS ORDERED that each parent, who has not previously done so, provide information regarding the medical history of the parent and parent's ancestors on the medical history report form, pursuant to § 161.2021, Texas Family Code.
12. Continuation of Court-Ordered Ad Litem or Advocate
12.1. The Court finds that the children the subject of this suit will continue in care and this Court will continue to review the placement, progress and welfare of the children.
12.2. IT IS THEREFORE ORDERED that LAURA C. OLIVEIRA DURAN, earlier appointed as Attorney and Guardian Ad Litem to represent the best interests of the children, is continued in this relationship until further order of this Court or final disposition of this suit.
13. Court Ordered Ad Litem for Parent
.13.1. IT IS THEREFORE ORDERED that MATTHEW FINCH earlier appointed to 1 represent CYNTHIA THOMASON is relieved of all duties based on a finding of 2/ good cause.
13.2. IT IS THEREFORE ORDERED that MARGARET A. SCOTT earlier 9 appointed to represent MAURICE COLLINS is relieved of all duties based on a 2 finding of good cause.
14. Dismissal of Other Court-Ordered Relationships
Except as otherwise provided in this order, any other existing court-ordered relationships p with the children the subject of this suit are hereby terminated and any parties claiming a L court-ordered relationship with the children are dismissed from this suit.
15. Inheritance Rights 9 2 This Order shall not affect the right of any child to inherit from and through any party p G 1 6 S o Order of Terrninaton PageS 147 2014-PA00142/288TH ASAP 2013 DOCUMENT SCANNED AS FILED
Denial of Other Relief IT IS ORDERED that all relief requested in this case and not expressly granted is denied. WARNING: APPEAL OF FINAL ORDER, PURSUANT TO § 263.405, TFC A PARTY AFFECTED BY THIS ORDER HAS THE RIGHT TO APPEAL. AN APPEAL IN A SUIT IN WHICH TERMINATION OF THE PARENT-CHILD RELATIONSHIP IS SOUGHT IS GOVERNED BY THE PROCEDURES FOR ACCELERATED APPEALS IN CIVIL CASES UNDER THE TEXAS RULES OF APPELLATE PROCEDURE. FAILURE TO FOLLOW THE TEXAS RULES OF APPELLATE PROCEDURE FOR ACCELERATED APPEALS MAY RESULT IN THE DISMISSAL OF THE APPEAL. NOTICE TO ANY PEACE OFFICER OF THE STATE OF TEXAS: YOU MAY USE REASONABLE EFFORTS TO ENFORCE THE TERMS OF CHILD CUSTODY SPECIFIED IN THIS ORDER. A PEACE OFFICER WHO RELIES ON THE TERMS OF A COURT ORDER AND THE OFFICER'S AGENCY ARE ENTITLED TO THE APPLICABLE IMMUNITY AGAINST ANY CLAIM, CIVIL OR OTHERWISE, REGARDING THE OFFICER'S GOOD FAITH ACTS PERFORMED IN THE SCOPE OF THE OFFICER'S DUTIES IN ENFORCING THE TERMS OF THE ORDER THAT RELATE TO CHILD CUSTODY. ANY PERSON WHO KNOWINGLY PRESENTS FOR ENFORCEMENT AN ORDER THAT IS INVALID OR NO LONGER IN EFFECT COMMITS AN OFFENSE THAT MAY BE PUNISHABLE BY CONFINEMENT IN JAIL FOR AS LONG AS TWO YEARS AND A FINE OF AS MUCH AS $10,000.
4 The Court finds that all parties have waived any objections to the hearing by an Associate Judge and do hereby waive their right to de novo review pursuant to Section 201.015 of the Texas Family Code. DEC 1. 1. 20W 2 SIGNED this _____ day of , 2014. 3. 44
CHARLES MONTEMAYOR 55(CIATE JUDGE 0 3 9 2 p 6
6 S Order of Termination 201 4-PA00142 /288TH ii Page 6 148 ASAP 2013 DOCUMENT SCANNED AS FILED
APPROV D AS TO FORM:
KRIStEN CAtVERT Attorney for Petitioner, Department of Family and Protective Services Bexar County Courthouse 3rd Floor 100 Dolorosa, 3rd Floor San Antonio, TX 78205 email: kcalvert@bexar.org phone: (210) 224-1430 fax: (512) 934-9626 State Bar #00787188
Attorney and Guardian Ad Litem for the Children
State Bar #
CYNTHIA THOMASON Mother of the Children
1. 2 the Mother CYNTHIA THOMASON :1. State Bar #
41 V MAURICE COLLINS Presumed Father of the Child M C and T C
6/ 461M MargaretLj. Scott Attorney for the Presumed Father MAURICE COLLINS
State Bar # b Order of Termination 2014-PA00142/286TH ASAP2O13 149 Page7 TAB 2 Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-14-00893-CV
IN THE INTEREST OF M.C. and T.C.
From the 288th Judicial District Court, Bexar County, Texas Trial Court No. 2014-PA-00142 Honorable Charles E. Montemayor, Associate Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice
Delivered and Filed: June 10, 2015
AFFIRMED
Appellant Maurice C. appeals the trial court’s termination of his parental rights to his
children, eight-year-old M.C. and five-year-old T.C. 1 After a bench trial, the trial court found by
clear and convincing evidence that Maurice C. had (1) knowingly placed or knowingly allowed
his children to remain in conditions or surroundings that endangered their physical or emotional
well-being (section 161.001(1)(D) grounds); (2) failed to comply with the provisions of a court
order that specifically established the actions necessary for Maurice C. to obtain the return of his
children who had been in the permanent or temporary managing conservatorship of the Department
of Family and Protective Services for not less than nine months as a result of the children’s removal
1 To protect the privacy of the parties in this case, we identify the children by their initials and the parents by their first names only. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014). 04-14-00893-CV
from the parent under Chapter 262 for the abuse or neglect of the children (section 161.001(1)(O)
grounds); and (3) constructively abandoned his children who had been in the permanent or
temporary managing conservatorship of the Department for not less than six months and the
Department made reasonable efforts to return the children to Maurice C. (section 161.001(N)
grounds). The trial court also found by clear and convincing evidence that termination of Maurice
C.’s parental rights was in the children’s best interest. On appeal, Maurice C. argues the evidence
is legally and factually insufficient to support the above findings by the trial court. He also argues
that the trial court erroneously admitted, over his objection, hearsay testimony.
THE TRIAL
Maurice C. did not appear at trial. His court-appointed attorney stated at the beginning of
trial that he had not had contact with Maurice C. since he had moved to Houston. His attorney
announced “not ready” and requested a continuance. The Department responded that the case had
been pending for ten months and asked the court to proceed to trial. The trial court denied the
motion for continuance and trial proceeded.
The Department called as its only witness Jennifer Iruegas, the Department case worker
assigned to the case. Iruegas testified that the children were currently residing with their maternal
grandparents and had been doing so since the case began. According to Iruegas, the children were
doing well with their grandparents and had developed an attachment to them. She testified it would
be harmful for the children to be removed from their current placement and that the plan is for this
current placement to lead to permanency. When asked about the events leading to the children’s
removal from their parents, Iruegas began her answer when Maurice C.’s attorney objected:
Iruegas: Yes, ma’am. We received a referral – the Department received a referral in November of 2013 alleging neglectful supervision of the children. The parents were allegedly using drugs and at one point –
-2- 04-14-00893-CV
Maurice C.’s attorney: Judge, I’m going to object as to hearsay unless this caseworker was present and is aware personally of the use of drugs. That’s, again, hearsay and I just objected. 2
Court: Overruled. She’s charged with familiarizing herself with the knowledge of the contents of the file and the circumstances that led to CPS intervention. Go.
Iruegas: And at one point the mother did become intoxicated with alcohol and Xanax and began to – well, proceeded to slit – attempt to slit her own throat with a knife in front of her children telling them good-bye and she’s tired of being in the world.
Iruegas then testified that when this incident occurred, (1) the mother and Maurice C. had
been living together; (2) a safety plan was already in place; (3) Maurice C. was not present, and
under the safety plan, he was not supposed to leave the mother unsupervised with the children; and
(4) Maurice C. was aware of the mother’s mental issues. Iruegas testified that a service plan was
created for both parents, and neither had completed their respective service plan. According to
Iruegas, both children are “in trauma-informed therapy because of the incident that occurred with
their mother inflicting harm to herself in front of them.” Iruegas testified that the incident with
their mother had left the children with emotional scars. Iruegas then testified that terminating the
parental rights of both parents was in the children’s best interest.
Iruegas also testified that the parents visited their children about fifteen times during the
ten months the case had been pending and had stopped their visits in September 2014, three months
before trial. Iruegas testified that the parents had done “nothing” to demonstrate that they can
provide the children with a safe and stable home. According to Iruegas, Maurice C. had been living
in Houston since October 2014. Iruegas testified that she had spoken with Maurice C. in October
2014 and reminded him of the trial date. She told him that he needed to continue his services in
2 This is the only objection made by Maurice C.’s attorney during Iruegas’s testimony. Maurice C.’s attorney did not request a running objection.
-3- 04-14-00893-CV
order to be able to work toward reunification with his children. She asked him if he intended to
continue his services. According to Iruegas, Maurice C. “was angry and he was – it seemed like
he had lost hope and claimed that it didn’t matter if he did his services or not.” Maurice C. told
Iruegas that he had recently lost his job and was looking for a new one. Iruegas also testified that
Maurice C. was “unsuccessfully discharged from individual counseling for noncompliance and he
did not maintain employment.” Maurice C. missed several counseling sessions, and according to
Iruegas, with regard to Maurice C.’s therapy “[t]here was concern [about] his lack of planning and
his lack of ability to care and ensure the safety of his children and not leave them alone with [the
mother].” Iruegas testified that Maurice C. had on at least one occasion left the children alone with
their mother while he went to work. Iruegas testified that the mother was currently homeless and
in September 2014 had been at the psychiatric unit at University Hospital. The mother had become
intoxicated and harmed herself, at which time she called the crisis hotline and was taken to
University Hospital. The mother had left a voice message with the Department, and according to
Iruegas, the mother’s message was “completely incoherent” and the mother “was obviously
intoxicated by something.” According to Iruegas, the mother had been hospitalized twice during
the pendency of the case.
Iruegas was asked if Maurice C.’s rights should be terminated because the mother has a
mental illness. Iruegas responded, “Along with his inability to care for – to ensure safety for his
children, yes.” Iruegas testified that in the pre-litigation family-based case, Maurice C. was
informed that he could not leave his children alone with the mother because of her mental health
problems:
Q: Was it the family-based case that ultimately resulted in this case and that Dad violated?
A: Yes.
-4- 04-14-00893-CV
Q: Was it highlighted to the Dad in the family-based case that the reason he shouldn’t leave his kids alone with the Mom was because of her mental health problems?
Q: And he violated that?
A: Yes, ma’am.
When asked what Maurice C. had done to demonstrate that he would not make such a bad decision
again, Iruegas replied, “Nothing.”
HEARSAY
Maurice C. argues the trial court erred in overruling his hearsay objection to Iruegas’s
testimony that the Department received a referral in November 2013 alleging neglectful
supervision of the children because the parents were using drugs and at one point, the mother
became intoxicated with alcohol and Xanax and attempted to slit her throat with a knife in front of
her children. We review the admission of evidence for abuse of discretion. See Whirlpool Corp. v.
Camacho, 298 S.W.3d 631, 638 (Tex. 2009).
Whether or not this testimony was inadmissible hearsay, any error is harmless because
Maurice C. did not continue to object to Iruegas’s testimony or request a running objection. To
obtain the reversal of a judgment based upon an error of the trial court in admission or exclusion
of evidence, it must be shown that the trial court did in fact commit error and that the error
complained of probably caused the rendition of an improper judgment or probably prevented the
appellant from properly presenting the case to the court of appeals. See TEX. R. APP. P. 44.1(a);
State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009). Any error in excluding
evidence is harmless if other admitted evidence reveals the same facts as that which is excluded.
Bryant v. Transcon. Gas Pipe Line Corp., 821 S.W.2d 187, 188 (Tex. App.—Houston [14th Dist.]
1991, writ denied); see Cent. Expressway, 302 S.W.3d at 870 (“[T]he exclusion or admission is
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likely harmless if the evidence was cumulative, or the rest of the evidence was so one-sided that
the error likely made no difference in the judgment.”). After Maurice C. objected to Iruegas’s
testimony, Iruegas gave similar testimony without objection. Therefore, any error was harmless.
SUFFICIENCY OF THE EVIDENCE
Parental rights may be terminated only upon proof of clear and convincing evidence that
(1) the parent has committed an act prohibited by section 161.001(1) of the Texas Family Code,
and (2) termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001 (West
2014). Here, the trial court found three grounds supporting termination of Maurice C.’s parental
rights under section 161.001(1). Maurice C. argues there is legally and factually insufficient
evidence to support all three grounds.
When the legal sufficiency of the evidence is challenged, we look at all the evidence in the
light most favorable to the trial court’s finding to determine whether a reasonable trier of fact could
have formed a firm belief or conviction that its finding was true. In re J.O.A., 283 S.W.3d 336,
344 (Tex. 2009). “To give appropriate deference to the factfinder’s conclusions and the role of a
court conducting a legal sufficiency review, looking at the evidence in the light most favorable to
the judgment means that a reviewing court must assume that the factfinder resolved disputed facts
in favor of its finding if a reasonable factfinder could do so.” Id. (citations omitted). “A corollary
to this requirement is that a court should disregard all evidence that a reasonable factfinder could
have disbelieved or found to have been incredible.” Id. (citations omitted). “If, after conducting its
legal sufficiency review of the record evidence, a court determines that no reasonable factfinder
could form a firm belief or conviction that the matter that must be proven is true, then that court
must conclude that the evidence is legally insufficient.” Id. at 344-45 (citations omitted).
When a parent challenges the factual sufficiency of the evidence on appeal, we look at all
the evidence, including disputed or conflicting evidence. Id. at 345. “If, in light of the entire record,
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the disputed evidence that a reasonable factfinder could not have credited in favor of the finding
is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then
the evidence is factually insufficient.” Id. (citations omitted). In reviewing termination findings
for factual sufficiency, we give due deference to the factfinder’s findings and do not supplant its
judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
With regard to the trial court’s finding pursuant to section 161.001(1)(O), Maurice C.
argues the evidence is legally and factually insufficient to support the trial court’s finding that he
failed to comply with the provisions of a court order that specifically established the actions
necessary for him to obtain the return of his children who had been in the Department’s permanent
or temporary managing conservatorship for not less than nine months as a result of the children’s
removal under Chapter 262 for abuse or neglect. At trial, the trial court took judicial notice of the
service plan. The service plan required that Maurice C. complete parenting classes, have a drug
assessment with drug treatment, complete a psychological evaluation, complete individual
counseling, and maintain housing and employment. Maurice C. completed parenting classes, and
his drug and psychological assessment. However, he was unsuccessfully discharged from
individual counseling for non-compliance because he missed several sessions. According to
Iruegas, as a result of the sessions Maurice C. did attend, the therapist was concerned about “his
lack of planning and his lack of ability to care and ensure the safety of his children and not leave
them alone with [the mother].” Iruegas also testified that he failed to maintain steady employment.
He was employed on-and-off during the ten-month pendency of the case. When she talked to him
in October, he had lost his job, had moved to Houston, and was looking for a new job.
Maurice C. complains that Iruegas did not testify that she made all the referrals and
authorizations necessary for him to participate in services or give any examples of her efforts to
reunite him with his children. However, Iruegas did testify that the Department had made
-7- 04-14-00893-CV
reasonable efforts to work with both parents. She testified that she “reached out to [Maurice C.]
several times and on one occasion he did answer the phone.” She reminded him of the court dates
and told him that he would need to continue with his services in order to work towards reunification
with his children. According to Iruegas, Maurice C. was angry and frustrated, stating that he did
not believe it mattered if he continued his services. Iruegas testified that she provided Maurice C.
with information and the proper authorization to participate in the services. We hold the evidence
is legally and factually sufficient to support the trial court’s finding pursuant to section
161.001(1)(O).
With regard to the trial court’s finding pursuant to section 161.001(1)(D), Maurice C.
argues the evidence is legally and factually insufficient that he knowingly placed or knowingly
allowed his children to remain in conditions or surroundings that endangered the physical or
emotional well-being of the children. See TEX. FAM. CODE ANN. § 161.001(1)(D) (West 2014).
Subsection D permits termination based on a single act or omission by the parent. In re R.D., 955
S.W.2d 364, 367 (Tex. App.—San Antonio 1997, pet. denied).
The term “endanger” means “to expose to loss or injury.” Tex. Dep’t of Human Servs. v.
Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re J.J.B., No. 04-14-00299-CV, 2014 WL 4218845,
at *2 (Tex. App.—San Antonio Aug. 27, 2014, no pet.). Although “‘endanger’ means more than a
threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it
is not necessary that the conduct be directed at the child or that the child actually suffers injury.”
Boyd, 727 S.W.2d at 533; see In re J.J.B., 2014 WL 4218845, at *2 (explaining that “abusive or
violent conduct by a parent or other resident of a child’s home can constitute a condition that
endangers the child’s physical or emotional well-being within the meaning of section
161.001(1)(D)). “Although the parent need not have certain knowledge that an actual injury is
occurring, the parent must at least be aware of the potential for danger to the child in such an
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environment and must have disregarded that risk.” In re A.S., 261 S.W.3d 76, 83 (Tex. App.—
Houston [14th Dist.] 2008, pet. denied). At trial, Iruegas testified that Maurice C. was aware of the
mother’s mental health issues and knew that he was not permitted to leave the children alone with
the mother pursuant to the Family Based Safety Plan. 3 He nevertheless left the children alone with
the mother. Iruegas testified that the children then witnessed their mother inflict harm upon herself,
resulting in the children suffering from “lasting emotional scars” and undergoing trauma-informed
therapy. Thus, there was testimony that Maurice C. knew about the danger posed to his children
by their mother’s mental health problems, was specifically told by the Department that he could
not leave the children alone with her, and nonetheless did so. We conclude the evidence is legally
and factually sufficient to support termination of Maurice C.’s parental rights on section
161.001(1)(D) grounds. 4
Maurice C. also argues the evidence is legally and factually insufficient to support the trial
court’s finding that termination of his parental rights is in his children’s best interest. See TEX.
FAM. CODE ANN. § 161.001(2) (West 2014). There is a strong presumption that the best interest of
a child is served by keeping the child with a parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).
However, there is also a presumption that when the court considers factors related to the best
interest of the child, “the prompt and permanent placement of the child in a safe environment is
presumed to be in the child’s best interest.” TEX. FAM. CODE ANN. § 263.307(a) (West 2014). And,
in determining whether the child’s parents are willing and able to provide the child with a safe
environment, the court should consider the following: the child’s age and physical and mental
3 This safety plan was in place prior to the children’s removal and is different from the service plan referred to previously. 4 Because only one ground under section 161.001(1) can support the termination of parental rights and because we have determined that sufficient evidence supported two different grounds under section 161.001(1), we need not determine whether there is sufficient evidence that Maurice C. constructively abandoned his children under section 161.001(1)(N).
-9- 04-14-00893-CV
vulnerabilities; the willingness and ability of the child’s family to seek out, accept, and complete
counseling services and to cooperate with and facilitate an appropriate agency’s close supervision;
the willingness and ability of the child’s family to effect positive environmental and personal
changes within a reasonable period of time; and whether the child’s family demonstrates adequate
parenting skills, including providing the child with minimally adequate health and nutritional care,
a safe physical home environment, and an understanding of the child’s needs and capabilities. Id.
§ 263.307(b). In addition, courts may consider other nonexclusive factors in reviewing the
sufficiency of the evidence to support the best interest finding, including (1) the desires of the
child, (2) the present and future physical and emotional needs of the child, (3) the present and
future emotional and physical danger to the child, (4) the parental abilities of the persons seeking
custody, (5) the programs available to assist those persons seeking custody in promoting the best
interest of the child, (6) the plans for the child by the individuals or agency seeking custody, (7)
the stability of the home or proposed placement, (8) acts or omissions of the parent which may
indicate the existing parent-child relationship is not appropriate, and (9) any excuse for the parent’s
acts or omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). This list is not exhaustive,
and evidence is not required on all of the factors to support a finding terminating a parent’s rights.
Id.; In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
At trial, there was evidence that Maurice C.’s young children had been living with their
maternal grandparents for the previous ten months, were doing well, and had formed an attachment
that continues to grow. Iruegas testified that it would be harmful for the children to be removed
from their maternal grandparents and that the plan was for their current placement to lead to
permanency. Iruegas also testified that Maurice C. failed to maintain stable employment, and in
the final months before trial, Maurice C. stopped all communication with both his children and the
Department. He stopped visiting his children. He was not able to show that he had stable housing.
- 10 - 04-14-00893-CV
Maurice C. also failed to complete individual counseling. Meanwhile, his very young children are
currently undergoing trauma therapy. We hold there is legally and factually sufficient evidence
that termination of Maurice C.’s parental rights is in the children’s best interest.
We affirm the trial court’s order terminating Maurice C.’s parental rights.
Karen Angelini, Justice
- 11 - TAB 3 Fourth Court of Appeals San Antonio, Texas
JUDGMENT
No. 04-14-00893-CV
From the 288th Judicial District Court, Bexar County, Texas Trial Court No. 2014-PA-00142 Honorable Charles E. Montemayor, Associate Judge Presiding
BEFORE JUSTICE ANGELINI, JUSTICE MARTINEZ, AND JUSTICE ALVAREZ
In accordance with this court’s opinion of this date, the trial court’s order terminating appellant’s parental rights is AFFIRMED. No costs of appeal are assessed against appellant.
SIGNED June 10, 2015.
_____________________________ Karen Angelini, Justice TAB 4 IM 141RIONKIIIIIIIII III 2014PA00142 —D288
C913.06 CAUSE NO. h? nP66m og IN THE INTEREST OF § IN THE DISTRICT COURT OF
M C , ET AL BEXAR COUNTY, TEXAS
CHILDREN 288TH JUDICIAL DISTRICT
ORDER APPOINTING ATTORNEY AD LITEM FOR FATHER
The Court finds that the immediate appointment of an .Attorney Ad Litem to represent the interests of MAURICE C against whom this suit is brought is required under § 161.003 (b), Texas Family Code. (
IT IS THEREFORE ORDERED that MARGARET A. C- TT, a licensed attorney at law of this state, is appointed Attorney Ad Litein for MAURICE C .
SIGNED this 22nd day of January, 2014.
JUDGE PRESIDING
4t462M: /Kristen Calvert ,/ Attorney for Petitioner, Department of Family and Protective Services Bexar County Court House 100 Dolorosa, 3rd Floor San Antonio, Texas 78205 9 Kcalvert@bexar.org phone: (210) 224-1430 fax: (210) 224-9887 STATE BAR #00787188
0 3 7
P G
Q Order Setting Hearing "CAUSE NUMBER" / 288TH
3 Page2 21 1 CAUSE NO . 2014.PA-00142
IN THE INTEREST OF IN THE DISTRICT COURT
MALIYAH COLLINS, ET AL 288 th JUDICIAL DISTRICT
CHILDREN BEXAR COUNTY, TEXAS
ORDER OF INDIGENCE
On this date, Respondent/s MAURICE COLLINS request for Order of Indigence was
presented to this Court. The Court finds this request should be granted for good cause. The
court finds that Respondent/s is indigent.
IT IS THEREFORE ORDERED that Respondent/s is hereby indigent.
SIGNED this 'J:Lf!!_y of ;[uli, 1.01£ . /
APPROVED AS TO FORM AND SUBSTANCE: Gerald Uretsky Attorney at Law 406 Brees Boulevard San Antonio, Texas 78209-4828 Phone: (210) 820-8294 Fax : (210) 822-8735 Email: uretsky@msn.com
~~c ATTORN~ ENT
in the Interest of M.C. and T.C., Children (in the Interest of M.C. and T.C., Children) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.